Monday, August 31, 2009

Foreclosure Follies -- State Court Update

Anybody who's been in state court lately knows the burdens of the foreclosure docket on the judges, clerks, staff, and of course the civil lawyers. It's a mess out there.

It's unclear whether the forced mediation route will lessen the overload, though it does hold some promise:

A task force convened by the Florida Supreme Court to examine the foreclosure crisis has endorsed that model, likening it to "off-ramps to get traffic off the road."

"In order to cope with the size of the problem, the huge numbers of incoming foreclosure cases, the Task Force concluded that only managed mediation could handle the problem in a consistent manner statewide," said its report, released Aug. 17.

But not all judges are on board.

Thomas McGrady, chief judge for the Sixth Circuit covering Pasco and Pinellas counties, said forcing mediations could be counterproductive and add expense, especially in cases where people have no real hope of keeping their homes.

"We're talking 10 percent maybe that are good candidates for mediation," said McGrady, who heard civil cases in Pinellas before becoming chief judge.

He favors identifying those top candidates and ordering them to the traditional mediation program available for any civil case.

But Gardner worries that unsophisticated borrowers would be at a disadvantage in that setting.

"Chances are, they're not really prepared," she said.

The Task Force report noted that in managed mediation, lenders may pay more up front but come out ahead if people are able to stay in their homes.

"Frankly, these lending institutions don't want the property. They really don't want the property," said Circuit Judge Lowell Bray, who works in New Port Richey. "Who knows what they're going to sell it for and when they're going to sell it?"

But Bray said he refers only a small fraction to mediation simply because most borrowers don't respond at all to the foreclosure suit.

"There is no issue to mediate," he said.

Right, often times the borrower does not show up, but that can be remedied through education, outreach, and pro bono efforts by legal aid organizations.

Meanwhile, here's an interesting judge from Brooklyn who handles foreclosure cases his way:

The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.

His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions.

Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.

Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.

“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”

Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom.

He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.

Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore.

“Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks, savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”

Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”

Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:

“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ ”

The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”
Julius Caesar, Mr. Potter, Kansas City Shuffle -- sign this judge up for the blog!

Robbery Suspect Denounces Robbery Investigation As "Unwise."

Oy did I wake up pissed off this morning.

But then I read John Pacenti's tremendous column today and learned that former prosecutor Sean Cronin, who got into such hot water for his shockingly poor judgment during the Ali Shaygan trial before Judge Gold (now on appeal), is actually working on Gitmo cases!?!?!

Thanks John, now I feel a whole lot better.

Here's Senor Calli on this pickle of a predicament:
“I was surprised to learn that there would be an appeal of that order with a professed view from the Department of Justice in Washington to hold prosecutors accountable,” he said. “Judge Gold is one of the finest district court judges in the country. He went to great pains at the sanctions hearing to protect the due process rights of these prosecutors and law enforcement agents and gave them every opportunity to explain themselves.”

Calli said Gold, along with many federal jurists around the country, is concerned that prosecutors are not being held accountable by their department.

“I think whether it’s in Alaska or Florida or in Boston, you are seeing district judges police their own courtroom,” he said.
Ahh yes, accountability --a wonderful concept that should in all cases be applied strictly to others.

Angry commuter Joe DeMaria chimes in:
“Government seems to be blind to the message Judge Gold was sending,” DeMaria said. “I’m concerned when a senior government prosecutor seeking the position of U.S. attorney is being defensive about it. Whether it’s sanctionable or not, the conduct was not defensible.”
Defensive? Lack of accountability?

You want to talk defensive and unaccountable conduct, consider the Dark One's appearance on Fox News Sunday:
“We ask these people to do some very difficult things,” Mr. Cheney said. “They do so at the direction of the president.”
Interesting choice of words, "difficult."

In what sense is it "difficult" for the perpetrator to have to torture someone "at the direction of the President"?

Hmm, this reminds me of a discussion we had recently on Rump's blog.

You mean it's "difficult" for the torturer in that sometimes this person is called on by the state to be ruthless, to be cold-blooded, to be merciless in committing what some might from the outside view as cruel, inhumane or even immoral acts -- to compartmentalize and justify these actions because they are being done for the greater good, for the nation, for total Victory, and for Our Fearless Leader?

Nope, good thing modern Western Civilization has never encountered that impulse before.

Friday, August 28, 2009

BREAKING -- Pepe Le Pew Named New US Senator!

So I see everybody is buzzing about that French love-sick skunk being named the new US Senator from Florida.....

Huh? You mean it's not...?

Oops -- apparently the new US Senator is in fact Gunster chairman and former Crist chief of staff George LeMieux.

You can read more about George in his self-styled The Lemieux Report.

Roberto the trial lawyer and I apologize for any confusion.

SFL Friday -- School's Out, Plebs! (Until Monday)

So how many of you survived the first week?

Let me rephrase -- how many of you survived the first week sober?

Ok, so none of us did.

Still, it's Friday afternoon and that means no one is paying any attention to what they are working on anymore.

Just file the motion or response you have been editing and cut out already! The partner's gone, the judge is gone, the clerks are there but they stopped working, opposing counsel won't read anything until Monday, possibly Tuesday -- get the hail out of here.

Me, I plan to depart imminently to windsurf the stormy seas.

Don't understand my watery attraction? Let me paint a verbal picture.....

Oh hail I better just quote Byron:
HERE be none of Beauty's daughters
With a magic like Thee;
And like music on the waters
Is thy sweet voice to me:
When, as if its sound were causing
The charm├ęd ocean's pausing,
The waves lie still and gleaming,
And the lull'd winds seem dreaming:
And the midnight moon is weaving
Her bright chain o'er the deep,
Whose breast is gently heaving
As an infant's asleep:
So the spirit bows before thee
To listen and adore thee;
With a full but soft emotion,
Like the swell of Summer's ocean.
See what I mean -- why am I still at my computer?

So the gear's packed, the gin is iced, and I am on my way. As usual, I plan to spend the weekend deeply gazing at something, working diligently on my rituals, and trying to figure out where I put that old bean bag chair.

Also, don't forget to vote for Hands On or your favorite charity in this nice cookie-sponsored giveaway contest here.

Have a great weekend everybody!

Probably Not Good to Be "Outside Attorney A."

Former CFO for R. Allen Stanford, Jim Davis, pleaded guilty to fraud yesterday.

This is probably not good news for Proskauer's Tom Sjoblom, who the WSJ Law Blog has written is most likely "Outside Attorney A" in the Davis plea agreement.

Here's just some of the fun stuff detailed by the Law Blog from the agreement:

For starters, Sjoblom comes across in the agreement as a fervent defender of Stanford International Bank as early as 2006. Davis agreed that the government could prove that in 2006 “Outside Attorney A” (Sjoblom) contacted the SEC, which had started an investigation of the bank, to tell the agency that it had “no basis” to request documents concerning the bank’s investment portfolio, and that he “had spent 15 years investigating fraud for the SEC and was ‘well-equipped’ to recognize the ‘hallmarks of fraud.’”

But the allegations relate to events from a couple years later. In 2008, the plea agreement says, Sjoblom was informed that the bank’s CD investment portfolio included a tier of illiquid investments valued at $6 billion and that it wasn’t disclosed to investors. (The tier later turned out to be mostly fictitious.) Also, Sjoblom learned that the bank’s chief investment officer Laura Pendergest-Holt, didn’t manage that part of the portfolio.

But Sjoblom, in a meeting in January of this year with SEC lawyers who were investigating the CD investment portfolio, according to the plea, “falsely maintained” that the company’s chief executive and chief financial officer didn’t “micro-manage” the CD investment portfolio and falsely maintained that Holt would be in the best position to talk about it. Sjoblom then “falsely informed the SEC attorneys at this meeting that [the bank] was ‘not a criminal enterprise.’”

Later, in February, Sjoblom allegedly learned at a Miami meeting with Stanford execs that the bank was, according to the plea agreement, likely insolvent because the CD investment portfolio was essentially fictitious. The chief executive, Allen Stanford, later told him that the bank’s “assets and financial health had been misrepresented to investors.”

A few days later, on Feb. 10, Sjoblom sat by Holt’s side as she told SEC lawyers under oath that “she was unaware of the assets and allocations of assets” in the $6 billion tier, despite the fact that both Holt and Sjoblom had allegedly been given details about the tier in the Miami meeting with Stanford execs. On Feb. 14, Sjoblom resigned from representing the bank and sent a note to the SEC, saying, “I disaffirm all prior oral and written representations made by me and my associates to the SEC staff.”

It's weird -- I have scoured the agreement and news reports, and have not found a single interesting anecdote by anyone reached for comment in connection with this story.

I did, however, just come across this Miami lawyer arguing that if you want to be a player in international banking you have to have a presence in Miami, thanks to our "world-class money management."

And don't forget our great regulators!

I mean seriously, what could possibly go wrong?

Thursday, August 27, 2009

A Full Service Firm, Providing A Wide Range of Legal Services to All Our Ice Delivery Truck Clients!

How'd you like to have a practice that does nothing other than service condo associations in the middle of this real estate meltdown?

Meet Robert Kaye:
Kaye is a partner with Kaye & Bender law firm in Fort Lauderdale. The full-service commercial law firm represents more than 600 condominium and homeowner associations in Broward, Miami-Dade and Palm Beach counties.
I'm kidding, of course. Bob's firm is a true full-service firm that does all kinds of other things too.

Still, for those condo board clients, it just might take a while for those collectables to roll in:
When will the situation improve?
It is very difficult to predict the end of the current situation that we are in. At the end of the 1970s, there was a real estate recession in South Florida and it took nearly 14 years to recover. The current economic conditions are far worse now than they were then, but there are also circumstantial differences, such as the stimulus funds from the federal government. That should contribute to a faster recovery.
Ok, so maybe 10 years, that's still a long time.

Just to be safe, let me call the bank and check on my line of credit.

Hello? Hello? Out of service?

Random Thoughts In My Head.

I'm having some trouble organizing my thoughts this morning, so let me just lay out what's jogging around in my brain right guys tell me if any of this is somehow related:

You know there's something wrong with Iqbal when Judge Posner questions its application in run of the mill federal cases:

In our initial thinking about the case, however, we were reluctant to endorse the district court's citation of the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), fast becoming the citation du jour in Rule 12(b)(6) cases, as authority for the dismissal of this suit. The Court held that in complex litigation (the case itself was an antitrust suit) the defendant is not to be put to the cost of pretrial discovery - a cost that in complex litigation can be so steep as to coerce a settlement on terms favorable to the plaintiff even when his claim is very weak - unless the complaint says enough about the case to permit an inference that it may well have real merit. The present case, however, is not complex.

But Bell Atlantic was extended, a week after we heard oral argument in the present case, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) - over the dissent of Justice Souter, the author of the majority opinion in Bell Atlantic - to all cases, even a case (Iqbal itself) in which the court of appeals had ‘promise[d] petitioners minimally intrusive discovery.' Yet Iqbal is special in its own way, because the defendants had pleaded a defense of official immunity and the Court said the promise of minimally intrusive discovery ‘provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from vigorous performance of their duties.

So maybe neither Bell Atlantic nor Iqbal governs here. It doesn't matter. It is apparent from the complaint and the plaintiff's arguments, without reference to anything else, that his case has no merit.

I've often wondered what would happen if some of my favorite cases were anthropomorphized into wrestlers and had to fight each other.

I'm pretty sure Venetian Salami would beat the snot of out Hickman v. Taylor.

However, while being interviewed ringside by Gordon Solie, Venetian Salami was viciously attacked from behind with a folding chair by Professor Toru Tanaka's tag-team partner Chudasama, which inevitably sets up the feud match involving all three of them and that great patriotic superstar, American Pipe.

I can't believe a guy seriously made an entire career out of impersonating Jerry Lewis. RIP Sammy Petrillo.

Problem -- my deep reservoirs of knowledge concerning World War II, films, and the Marvel Universe are beginning to merge -- did Captain America really punch out Hitler or did that just happen in a Tarantino movie?

Triple-oy alert -- Robert Zemeckis is remaking Yellow Submarine.

God do I love Drew Barrymore. Related -- I really hate Justin Long.

Ok folks, it's finally happened -- I have become Larry King.

Wednesday, August 26, 2009

3d DCA Watch -- Ron Paul Teebagy Edition

You know what they say, justice delayed is justice.....won't get fooled again?

(Damn!! I always screw that up.)

BTW, I have it on very good authority that Tallahassee -- as usual -- messed things up and caused a technical problem which resulted in the delay of our weekly breath of fresh judicial air.

So let's get right to deeply inhaling this week's gusts of juridical joy:

North Pointe v. Tomas:

What can you say about an opinion when the most interesting part is that the appellant is represented by a lawyer with the last name Teebagy?

(Steve's a nice guy btw).

Here Mr. Teebagy was on the losing end of an appeal dealing with how to calculate prejudgment interest when the insurer initially denied the claim but then later provided coverage.

Since Lugassy appears to be directly on point, the trial court decision to calculate interest from the date of loss was affirmed.

Republican Party of Miami-Dade County v. Davis:

Remember Ron Paul?

Before all anyone ever talked about was health care, Ron Paul used to say nice things about the Constitution, hold Teabag-y type parties, and I believe wanted everyone to get stoned (legally) some place other than while fighting a stupid war in Iraq.

Well some of those Paulians weren't so hot on how their candidate was treated by the Florida GOP and some might have even supported Paul if he ran as an independent or Libertarian in the general election.

Even worse, many of them tried to gain leverage over the party apparatus by running for positions within the party or to unseat those who they felt mistreated Paul or his supporters.

So in February 2008 the Florida GOP tightened the noose on their "loyalty oath" to basically require advanced blind allegiance to Ms. Alaska or whomever the Party Elders select:
The new loyalty oath required by the Party stated:

I, ____________, hereby swear and affirm that during my term of office I will not actively, publicly, or financially support the election of any candidate other than the Republican candidate in a partisan unitary, general or special election, or a Registered Republican in non-partisan elections, other than Judicial races governed under Florida Statute 105, if there is a registered Republican running for the same office, unless the county executive committee has taken an affirmative vote to endorse one Republican over another per Rule 8(B). I further swear and affirm that I will not engage in activities or conduct that may be deemed by the Grievance Committee and affirmed by the RPOF Chairman as likely to injure the name of the Republican Party or interfere with the activities of the Republican Party.
And sure enough, what do you know -- some of the electors did not submit their new oaths in time, and the Party refused to seat them. (I'm not saying they were Paul supporters, just explaining the background to the new-and-improved loyalty oath.)

There also was an issue regarding how accessible the new oaths were to potential electors and whether the new requirements were adequately disseminated.

Not happy with winning an election and signing the required oaths (albeit untimely), the electors moved for an emergency injunction requiring they be seated, which Judge Genden granted.

In a split-the-baby decision, Judge Salter held as follows:
We affirm the trial court and injunction on somewhat different grounds than those set forth in the order under review. See § 59.041, Fla. Stat. (2008). Our analysis pretermits any need to reconsider the adequacy of the injunction bond. We also affirm, without discussion, the trial court’s evaluation of the elements required for the entry of a temporary injunction.

As a matter of statutory construction, we find that the Party has the right to establish its own separate form of loyalty oath, and a filing deadline for that form, so long as it makes the new rule and new form reasonably (and timely) known and available to the prospective candidates. That right does not excuse the candidates’ obligations to comply with sections 103.091(4) and 99.021, and of course the Party cannot require the supervisor of elections to monitor compliance with any of the Party’s own rules. Here, the trial court found (and this evidence was not disputed below) that the Party’s notices regarding the new form and deadline were too little and too late. We agree.

We also find that the Party was estopped, by virtue of its knowledge of the alleged ineligibility of the appellees before the election, to await the outcome of the election and the commencement of a lawsuit by the appellees before submitting the alleged ineligibility to a court for resolution.
In a specially concurring opinion, Judge Cope takes this analysis to the teabag-filled woodshed:
No one in this case challenges the text of the oath, or challenges the right of the Party to require members of the executive committee to sign the oath.

But the Party went too far. The exact problem is that the Party required candidates to file this Party Loyalty Oath with the county chair by the Filing Deadline. According to the memo, a candidate failing to comply with this requirement would not be seated on the executive committee—even if that candidate won the election.
Seems fair, right?

Judge Cope continues:
In substance the Party required all candidates for executive committee positions to execute this additional Party Loyalty Oath as a condition of running for office. As a matter of form, the Party required the extra oath to be filed with the local committee chairperson, not with the supervisor of elections. But as a matter of substance, the Party reserved to itself the right to nullify the election of successful candidates if the candidates had not filed this extra oath by the Filing Deadline. This the Party cannot do.
Judge Cope concludes, sounding downright like that geeky old Ayn Rand-spouting doc from Texas:
What is at stake is the fundamental right of individuals to offer themselves as candidates for elective positions—including political party positions—and the equally fundamental right of party members to vote for the candidates of their choice. As explained earlier in this opinion, well-settled Florida precedent forbids the Party from imposing additional, nonstatutory requirements as a condition of running for elected office.
En banc and trip to the Supremes, anyone?

3d DCA Pub Crawl!!

I know everyone's anxiously waiting for 3d DCA Watch, but the pesky tubes are not cooperating and they still only have posted the opinions from last week.

In the meantime, I see that beginning August 25th the 3d DCA has organized an FIU Oral Argument Pub Crawl, starting out at the concrete bunker and culminating with a kegger at FIU Law School.

You can see the various stops on the crawl above.

Tuesday, August 25, 2009

J.B. Harris: A Day Late, A COBRA Short.

Did any of you know that J.B. Harris once worked at United Auto?

I didn't, but according to this 11th Circuit opinion his tenure as in-house counsel was apparently pretty brief.

Once he stopped working there, he continued to maintain his own health insurance coverage through COBRA -- which if I'm not mistaken is an early, more euphemistic government variant to the Obama Death Panels.

But then his wife and a possible "part-time" mailman entered the picture:
Harris asserts that his wife placed the payment in the mailbox on February 11, 2008, but the envelope containing the payment was not post-marked until February 12. According to the complaint, Harris’s wife
either inadvertently [placed the check in the mailbox] after the mail carrier had made his rounds. Or the envelope was picked up that day and post-marked a day later – February 12, 2008 – a real possibility in some areas of South Carolina – like where Mrs. HARRIS lives – because the postal service often employs part-time mail carriers, who use their own vehicles to deliver the mail, and the mail could have gotten delayed, misplaced or even left in the carrier’s car overnight, before making its way to the post office the next day to be postmarked.
Because the envelope was not received within the time period for payment and was postmarked one day after the end of the grace period, Ceridian terminated Harris’s COBRA coverage. Harris attempted to resolve this with UAIG and Ceridian, but they refused to reinstate his coverage.
Ain't health care fun in America?

BTW, I'm pretty sure I recognize that mailman -- not only did he deliver the mail to Mrs. Harris, but I'm pretty sure he also delivered the mail to Chevy Chase in Funny Farm.

See, I knew it would some day pay off to rewatch those subpar 80s comedies over and over and over again.

Hey, I (Almost) Agree With Glenn Garvin!

Boy it's slow out there, huh?

I was going to point out that anybody with a law license is now apparently under consideration to be the next United States Senator, but I see my friends over at Riptide beat me to it.

So let's talk Glenn Garvin.

It's certainly a legitimate political and rhetorical tool to point out when the other side is being hypocritical.

But how far does the observation get you?

It happens so often and with such stunning frequency that -- standing alone -- a charge of hypocrisy in politics is like getting excited over spotting an iguana in your South Florida neighborhood. It just doesn't resonate that much anymore.

So in today's column Glenn observes that economic boycotts used to be bad when they were directed to the Dixie Chicks, but now liberals like them when they are directed to Glenn Beck.

I think he has a point, but an infinitesimally small one.

In addition to the legitimacy of economic boycotts as a tool of political expression, isn't there also a component of whether or not -- in a particular case -- the economic boycott is appropriate?

To equate the Dixie Chicks, who criticized the President once while on foreign soil (a bugaboo that Glenn Greenwald has recently been discussing at length), with the repeated stream of corrosive crazy talk from Beck, is a bit unfair.

Doesn't it matter at all what you are boycotting?

Glenn also conflates corporate punishment with economic boycotts. Bill Maher wasn't fired because he was the subject of a popular protest movement - his bosses fired him because he made comments deemed too controversial. Entirely different thing.

That said, Glenn does devote his entire column to making an exceedingly minor rhetorical point, and I actually agree with him.

So I'm sure back when the Dixie Chicks were being vilified the way Garvin's buddy Beck is today, Glenn was writing similar columns condemning the outrage and pointing out the hypocrisy just like he's doing today, right?

Umm, the Herald must not have archived that column.

But look at this -- Garvin did accuse the Chicks of "embracing their First Amendment martydom"!

See how hypocrisy works, Glenn?

Monday, August 24, 2009

Free Speech Rights?

More on Tom Julin -- now he's busy representing BigPharma and lobbyists.

I don't have a comment on this, other than that is possibly the worst photo I have ever seen of Tom Julin.

Is that Tom or the Kingpin from Spiderman?

There, now I have exercised my free speech rights.

Friday, August 21, 2009

SFL Friday -- Pump It Up Edition.

Divorces are messy things.

The kids, the finances, the house, sometimes even the dog.

But who the hail cares about that stuff -- to me the most important issue is who gets custody of the x-rated pictures:
When a marriage goes bad, who gets the X-rated photos of the wife? In the case of Valeria Gentile and Erwin Cajamarca, the wife says she does.

She sued her soon-to-be-ex-husband last week in state circuit court in Sanford, accusing him of putting the photos on a Spanish-language porn site, distributing them via the Internet and, at times, using them during on-line sex chats.

The whole thing is humiliating, cruel and an invasion of her privacy, her suit alleges. Thousands of people have now seen her in a variety of sexual poses. She's demanding an unspecified amount of money.

Cajamarca, 39, an investment consultant, would not discuss the dispute, except to say that his estranged wife knew he was publishing some of the photos.

He took them with her consent before their marriage went sour, according to the suit.

So whose property are they?

They belong to both husband and wife, said Mitchel B. Krause, a Longwood divorce attorney.

This dispute, he said, it not uncommon among divorcing couples. Sometimes, ownership of these kinds of photos is one of the most contentious issues facing a divorcing couple, he said.

Usually, the spouse who'll be most embarrassed by them agrees to surrender other property to get them, he said.

"The husband will get the picture of the dog, the cat and the house and wedding photos, and the wife will get the other photos," he said.
Hmm, Longwood.

You know, I know a very good attorney in Leesburg who might be just the guy to handle this case -- you should look him up.

Well, I don't know about you but I'm sick and tired of being sick and tired, so I am out of here for some early windsurfing.

Conditions appear to be very favorable.

On my plate for this weekend is going back to school, moving energy from my second chakra, and, as always, trying to keep kosher.

Have a great weekend everybody!

When the S*&T Hits The Fan.

Boy it's a crazy day out there for South Florida lawyers, huh?

First there's this blockbuster story from the always intrepid Julie Kay taking a look at the John Leighton-Ira Leesfield breakup.

Among the more interesting allegations is that Ira installed spy software, bought lots of fancy things, and used his shop to bankroll Hillary's Florida campaign -- in other words, a day in the life at my firm.

Apparently, however, this was somehow problematic for Leigton:
The relationship nosedived when Leesfield failed to turn over the firm’s financial records shortly after Leighton became a name partner, the suit said. Leighton grew concerned about the firm’s expenses, overhead and compensation. At the same time, Leesfield would continually lecture Leighton about curbing his expenses.

“In 2007 and 2008, Leesfield spent several months away from the law firm and the active practice of law pursuing personal interests including serving as the finance chairman for Hillary Clinton’s failed presidential campaign,” the complaint states. “Much of the time that Leesfield actually spent in the office was used to solicit contributions for Hillary Clinton, and Leesfield as it turns out was using the law firm’s resources including staff, offices, postage, office supplies and other items to fund Leesfield’s personal political interests for Hillary Clinton causes.”

Leesfield “became confrontational, dictatorial and verbally abusive” when Leighton asked about firm finances, the complaint said.

Hall does not deny Leesfield spent a lot of time working for Clinton.

“He has a lot of causes he believes in, and he has earned the right to work on them,” Hall said.

Leighton suspected the firm was paying for Leesfield’s personal expenses including “vacation homes, parties, meals, entertainment, travel for himself and his family, clothing, luxury items and social, political and personal activities that were completely unrelated to the law firm’s business,” the complaint said.

Leighton also accuses Leesfield of putting his daughter on the firm’s payroll when she worked only sporadically and renting office space he and his wife personally owned at rates above fair market value.

Hall said Leesfield’s daughter, who does public relations for the firm, is actually underpaid for the work she does and Leighton, not Leesfield, is the big spender. “He had to have a $110,000 car,” Leesfield said.

Leesfield installed computer surveillance and keystroke logging technology to spy on his employees, the complaint said. By last December, Leesfield determined Leighton had obtained access to the firm’s records and confronted him.

“You work for me,” he yelled, according to the complaint. “This is my firm!”
Again, I pretty much yell something along those lines at somebody every single day.

In fact, in honor of Ira I just screamed those exact words at the lady who brought me a cafecito a few moments ago (of course she snickered and muttered something about my mother playing bingo or pingo or she's a penguin? -- I didn't really pay attention.)

You can read Leighton's complaint here.

Then we have Hank Adorno's response to a motion to strike his affirmative defenses in the bar proceedings, where he says Judge Peter Lopez must have known it was an individual settlement because otherwise we all would have had to have a fairness hearing. Even though it was for $7 million bucks!

(Nice negotiating, btw, Joe Arriola.)

I also enjoyed the part (page 9) where Hank explains that the only reason his firm did not pursue substitute class reps to carry on the class case after the individual settlement was because his partner Mitchell Bloomberg was undergoing aggressive treatment for lung cancer.

Also Sandy Bohrer has vouched for the individual settlement and Hank passed a polygraph test!

You can read the response here.

Sheesh -- and Friday's not even over yet, peoples.


Have you seen this letter sent to local blogger Random Pixels by GT attorney Ian Ballon on behalf of his client the Miami Herald?

I guess the Herald is upset over whether or not photos from their website are reproduced on blogs in thumbnail or "full-size"?

As if that determines whether or not the photos fall within the protections of the fair use doctrine?

Here is Ian's contention:
"Because fair use looks to the amount and substantiality of the portion taken (both in terms of quality and quantity), reproducing entire articles, large excerpts of articles or large-size photos is not permitted."
This sweeping generalization -- with no context and zero case citation -- is almost certainly wrong.

This is one of those examples where, as a lawyer, you have to talk to your client. Is it in your best interests to go after some local blogger for posting a picture? Is that really what you want your resources and attention focused on? Even if you had a colorable argument, is it a fight that is in your best interests to pursue?

(Though I appreciate that Ian's letter is somewhat restrained and not as dickwaddy as it could have been, I still would have advised against it).

My advice here would be, for the most part, to ignore Ian's letter. If there are "copies of entire articles" on his blog (which I understand are simply historical in nature and not lifted from the Herald online archives), I would edit them slightly so you are in compliance with Ian's demand.

The balance of the letter is wishy-washy and doesn't really require any further action, so I wouldn't take any.

Ian, I just gotta know something -- did Glenn Garvin put you up to this?

Thursday, August 20, 2009

Don't Like Arbitration Award? Have District Court Confirm It First.

This is a pretty clever resolution to an arbitration problem that was just affirmed by the 11th Circuit.

Problem was some monies were not properly credited to one of the arbitrating parties because the issue was not discovered until after the arbitration award.

What to do?

According to the 11th Circuit, the procedure adopted by the district court was kosher -- move for a judgment confirming the arbitration award, then seek to have the judgment modified under Rule 60(b)(5).


It actually makes some sense, and I urge everyone to read the thoughtful opinion.

I told you we had some smart judges within the 11th Circuit!

Wednesday, August 19, 2009

Hey, At Least They Spelled The Name Right.

You know what they say about getting your name in the press -- it's all good.

So by that measure I suppose this is a positive development:

In March, a federal jury in Richmond, Virginia convicted Okun of wire fraud, money laundering, smuggling, perjury and conspiracy, following a three-week trial.

Earlier this month, a federal judge sentenced the Miami businessman to 100 years in prison and to forfeit $40 million.

According to the filing, some of Okun's former lawyers have also agreed to make payments to the tax firm's estate to resolve possible claims.

Kluger, Peretz, Kaplan & Berlin PL will pay roughly $10.7 million, while Michael Rosen will pay $925,000, the filing shows.

Money shmoney, that's ok -- but no one touches the paintings!

BTW, check out the snazzy new KPKB website redesign.

3d DCA Watch -- Judge Shepherd Has Declined Your Invitation Edition!

Hi kids!

Well summer has finally made its way down to the fortified concrete bunker of justice, that hallowed spot by the highway where the Resplendently Robed Ones swill their free coffee and ply their shiny judicial wares.

Indeed, there are only two civil opinions this week, and one is a child dependency case, so that one doesn't even really count.

Still, let's take a look:

Valenzuela v. GlobeGround:

This is a gender discrimination case arising under the Florida Civil Rights Act of 1992.

The trial court granted summary judgment because the plaintiff did not satisfy the "similarly situated" prima facie requirement set forth in the seminal McDonnell Douglas opinion. The 3d affirmed Judge Glazer.

See, I'm not just obsessed with Iqbal or Venetian Salami. I know some other opinions too!

But McDonnell Douglas lacks a certain pizazz, if you will. It sounds like the name of a B-level actor from the 50s.

Plus it comes from 1973 -- a great year for films and music -- but otherwise a pretty crappy time for our country.

Sorry Miguel -- I'm sticking with what works.


Don't you just love the way Judge Shepherd frames his opinions, especially when he is trying to make a point about narrow statutory construction or the limited role of the judiciary:
By this appeal, the Department invites us to expand the definition of the “environment” in which a child “lives”—for purposes of attaining adjudications pursuant to this subsection of Florida’s dependency laws—beyond the limits to which we have heretofore expanded them: the child’s residence, see J.O. v. Dep’t of Children & Family Servs., 970 So. 2d 395 (Fla. 3d DCA 2007), and the curtilage surrounding the residence, J.C. v. Fla. Dep’t of Children & Family Servs., 937 So. 2d 184 (Fla. 2006). We decline the invitation.
Well, it wasn't really a formal invitation so much as you know, I'm going to the mall a little later and I thought maybe we could just hang out or something?

I mean, are you kidding, an invitation? You thought I was serious? I didn't want to go out with you either!

Seriously, though, for whatever reason, the statute says "live in an environment," instead of "reside in an environment" or "live in a home."

Is an "environment" the same as a home? Or is it intended to capture something more or different than merely the physical confines of an actual residence?

Let's see what Black's Law Dictionary says:
In performing our analysis, the Department would have us place our primary focus on the word “environment” in section 39.01(43). Focusing on this word, the Department argues the environment in which the child lives must include broadly “the totality of the child’s exposure.” We do not believe the phrase “live in an environment” can be interpreted so broadly. Rather, we are of the opinion that the focus should be on the word “live.” Although the word “live,” is not defined in section 39.01, we believe those who come within the purview of the statute would readily understand the word “live” and the phrase “live in an environment,” based upon ordinary meaning and common experience, to mean the environment or place where a person actually resides. Our conclusion is supported both by reference to the dictionary, see Black’s Law Dictionary 842 (5th ed. 1979) (“Live, v. “To live in a place, is to reside there, to abide there, to occupy as one’s home.”) (emphasis added), and the fact that in its initial filing in this case on July 27, 2007, the Department itself used the term “reside” in substitution for the word “live,” in making allegations relating to where the child lived for purposes of section 39.01(43).
First off, what term the Department used in a brief one time should have zero impact on a proper statutory analysis.

Second, if you are relying on Black's Law Dictionary as your primary authority -- along with "ordinary meaning and common experience" (the non-Wise Latina variety, of course) -- it's probably not as well-settled an issue in Florida as it seemed at the onset.

Finally, I wonder why Judge Shepherd went to Black's for a definition of "live" but not for "environment"?

Let's see if Black's Law Dictionary defines "environment" to be interchangeable with "place where a person actually resides" as Judge Shepherd used the word in the excerpt above.
Environment. The totality of physical, economic, cultural, aesthetic, and social circumstances and factors which surround and affect the desirability and value of property and which affect the quality of peoples' lives.
Yep, seems pretty narrow to me too -- an open and shut case!

Tuesday, August 18, 2009


Judge Thornton seals the Hirsch tapes:
A Miami Beach man attempting to overturn his DUI manslaughter conviction was handed a setback today when a Circuit Court judge ruled that a secretly made tape recording did not show prominent defense attorney Milton Hirsch urged his client to flee the country rather than face trial.

Judge John Thornton told lawyers for Sean Casey that he listened to the taped conservation "not just once, but several times" before he decided to permanently seal the recording, which makes it illegal to disseminate it or a transcript of the recording.
Don't worry -- the Eric Dane/Rebecca Gayheart threesome tapes are still available and do not appear to be subject to Judge Thornton's order.

So it's kind of a split-the-baby ruling.

BTW, Eric Dane and Rebecca Gayheart -- what a marriage!

Way to keep things fresh, you newlyweds.

Guy Bailey Jr. Disbarred.

Remember Guy Bailey?

He used to be a fairly prominent litigator who frequently appeared in federal court on commercial matters of various kinds.

Board-certified for many years, even filed a brief with Alan Dershowitz, partners with several lawyers in town.

I must have missed this, but he was disbarred for -- yep -- futzing around with client trust funds:
Guy B. Bailey Jr. of Miami, disbarred, effective June 13, following an April 23 court order. Bailey issued trust account checks to a client that were returned because of insufficient funds. He also failed to preserve client funds in accordance with Florida Bar rules regulating trust accounts.
Come on, folks -- you guys have to let me know these things.

Monday, August 17, 2009

Burton Young Schools George L. Metcalfe (Using Only Words!)

Most people are aware of (sick of?) Steve Zack's Claude Pepper impression.

Less known is my spot-on impression of friend and noted mensch Burton Young.

Sure it sometimes lapses into a passable George Burns, but when you think about it, so does Burt.

Anyway, Burt knows what he is talking about, and has this to say about the ban on gay adoption in Florida:
Florida’s bizarre “law” was passed more than 30 years ago during the anti-gay hysteria of Anita Bryant’s Save Our Children campaign. The ban on gay adoption was borne out of prejudice, plain and simple. It had no scientific predicate. Its backers were nothing more than lynch-type rabble rousers.
On an unrelated note, people are still writing angry letters about George L. Metcalfe's "ad" in the Florida Bar News.

I like how Burt cites his possible contemporary Charles Dickens:
“If the law supposed that,” said Mr. Bumble, …”the law is an ass …” (Dickens, Pickwick Papers, [1836-37]).


Are you one of those cheapskates who can't afford $.08 per page just to see how brilliantly some lawyer cites Iqbal in a boilerplate motion to dismiss?

Well, your prayers have been answered (h/t to a loyal reader):

The Solution: RECAP, a Firefox-only plugin, that rides along as one usually uses PACER — but it automatically checks if the document you want is already in its own database. The plug-in’s tagline, ‘Turning PACER around,’ alludes to the fact that its name comes from spelling PACER backwards. RECAP’s database is being seeded with millions of bankruptcy and Federal District Court documents, which have been donated, bought or gotten for free by open-government advocate Carl Malamud and fellow travelers such as Justia.

And if the document you request isn’t already in the public archive, then RECAP adds the ones you purchase to the public repository.

The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten.

That’s a pretty good hack, but it’s still just a stop-gap measure until the federal courts figure out that in the age of the internet, charging citizens to search and read public documents should be a federal crime.

Should be fun until Judge Moreno finds out!

Friday, August 14, 2009

SFL Friday -- Have A Super Nice Death Panel Weekend!

Hi kids!

So I see one of those fancy government death panels finally got to Les Paul.

RIP, old man.

Indeed, I got so emotional over Les' passing that I pulled out my old Keytar and jammed with Eddie Van Halen to celebrate the great man's life and legacy.

You can see our little get-together here.

Personally, I would have no problem "going home" at the appropriate time in one of those fabulous white government end-of-life dream recliners the way Edward G. Robinson did at the end of Soylent Green.

Lots of colors, glorious fields and flowers and big skies, then the drugs hit and your brain shuts down -- sorta of like Glenn Garvin's recent op-ed on Woodstock.

And who cares whether Senator Grassley supported funding end-of-life consultations back in 2003?

Consistency, hobgoblin, don't get fooled again or whatever -- you get my point.

Boy, we've had a few wild triple-oy weeks, huh?

Anyway, I'm pulling out of here for some early windsurfing, but I've got a full weekend ahead -- among other things I will be trying to connect my center to my heart, eating lots of cardamom and ginger, and -- my favorite -- seductively washing the dishes.

And don't forget to put your hands on something nice this weekend -- I always do.

Have a great weekend!

Bowman Brown Also Had Nothing To Do With Representing Stanford's "Outside Wives" Either.

Quick question -- how many "outside wives" do you have?

R. Allen Stanford had the customary number -- no more, no less -- for a Miami bigshot who was bilking investors for billions from his base at the Miami Center.

I mean, the guy's not greedy or anything.

But I guess one of his "outside wives" sold her Key Biscayne house and moved the proceeds offshore blah blah blah, and the Houston receiver overseeing the case doesn't really like that too much:

Stanford receiver Ralph Janvey said he wants U.S. District Judge David Godbey to find Rebecca Reeves-Stanford and her Florida attorneys in contempt for selling a $3 million house in May, after she learned Stanford’s assets were being sought to repay investors allegedly swindled in a $7 billion Ponzi scheme.

Reeves-Stanford, a resident of Key Biscayne, near Miami, is “one of several ‘outside wives’ with whom Stanford had an ongoing relationship” for “nearly two decades,” Kevin Sadler, Janvey’s attorney, said in court papers filed yesterday in federal court in Dallas.

Reeves-Stanford’s newest lawyer, Bradford M. Cohen of Fort Lauderdale, Florida, said Janvey won’t succeed in having his client or her previous attorneys found in contempt.

Hmm, just who are the Miami attorneys who are alleged to have assisted Ms. Reeves-Stanford?

(Please please please please please.....)

Janvey is asking that Reeves-Stanford’s two previous lawyers -- Melida Viera and John Priovolos, both of Miami -- be held in contempt for allegedly facilitating her sale of the property and movement of the proceeds to an offshore account. Priovolos declined to comment. Viera couldn’t be reached for comment after regular business hours yesterday.
Cue well-worn anecdote.......

Thursday, August 13, 2009

Your Regularly Scheduled GG Update.

Francisco Alvarado has done some great reporting on the continuing Sean Casey/Milt Hirsch secret tapes saga, which brought none other than the big man himself, Tom Julin, into Judge Thornton's courtroom this afternoon to seek the release of the tapes.

Tom's also been busy petitioning the Supreme Court on Florida's lunch and goodies lobbyist ban, again on free speech grounds.

Any predictions on what Judge Thornton (I know I know -- I'm still getting used to that too) will do?

Bobby Brochin Explains Iqbal (Did I Just Write That?)

You know that whole new "conceivable" no, "plausible" yes pleading standard we've been talking about -- also known as one step over the line, sweet Iqbal?

Well my friend Bobby Brochin understands it --I mean really groks it -- and succinctly explains the otherwise curiously vague standard right here:
Added Robert Brochin of Morgan, Lewis & Bockius, who represents Panamco: "The ruling reiterates that before you can file a lawsuit, particularly one brought under the banner of human rights abuses, you have to be able to plead facts that form a plausible legal theory. The plaintiffs in this case did not do that."
See how easy that was!

Too bad Iqbal was decided after the Coke case was argued to the 11th Circuit:
Plaintiffs lawyer Collingsworth told The Am Law Litigation Daily that the circuit court's reliance on Iqbal is troubling, given that the Supreme Court didn't issue its ruling until after this case was argued. "Iqbal drastically changes the pleading standard," he said. "At a minimum, we should get the chance to replead."
What a whiner!

Sorry Terry -- your timing do-over argument is conceivable, but not entirely plausible, making you completely SOL.

Wednesday, August 12, 2009

3d DCA Watch -- Blue Meanie Fishing Expedition Edition

Hi kids! I'm jazzed up today, and not just because it's that sacred of days when the Resplendently Robed Ones do their thang, as the youngsters say.

Speaking of death panels, I know I've had more than a few down at the 3d, but I'm much too demure and professional to name names so you all will have to employ your vivid imaginations on that one.

And no hints, kids, such as whether any of them rhyme with quarts or leopard.

So let's dig right in and see what the bestest judicial coffee-swillers in the world have been up to:

Bonilla v. Yale Mortgage:

Judge Hubbart!

He's such a nice man and good judge, I can't believe he wouldn't give a continuance to an attorney working pro bono through the Put Something Back program who had just been retained on a mortgage foreclosure:
At the hearing on the motion for summary judgment, Bonilla was not
present, and had not yet filed an answer. However, an attorney appeared at the
hearing and informally requested a continuance. The attorney explained that on
the previous day, he received a referral package to represent Bonilla through the
Put Something Back Pro Bono Project, and because he had not been able to
communicate with Bonilla, he could not file a notice of appearance on her behalf.
The trial court denied the attorney’s request for a continuance, and entered a final
summary judgment of foreclosure in favor of Yale Mortgage. The final judgment
reflects that the trial court adopted the figures set forth in Mr. Kahn’s affidavit,
including the interest due on the Note, which equals an annual rate of 18%, plus a
7% “prepayment penalty.”

Thereafter, Bonilla retained the attorney who was present at the summary
judgment hearing, and the attorney filed a motion for rehearing on Bonilla’s
behalf. The motion for rehearing raised numerous issues, including whether the
interest charged by Yale Mortgage was usurious. Specifically, Bonilla argued that
the 7% “prepayment penalty” must be characterized as interest upon default, and
therefore, when added to the interest charged in the final judgment, which equals
18% annually, the total annual interest charged by Yale Mortgage is usurious, as it
exceeds the 18% permitted by law. See § 687.02(1), Fla. Stat. (2008) (providing
that “[a]ll contracts for the payment of interest upon any loan . . . or upon any
obligation whatever, at a higher rate of interest than the equivalent of 18 percent
per annum simple interest are hereby declared usurious”); § 687.071, Fla. Stat.
(2008) (pertaining to criminal usury). Bonilla requested that the trial court grant
her motion for rehearing, vacate the order granting summary judgment, and allow
her to respond to the complaint on the merits. The trial court denied Bonilla’s
motion for rehearing. Bonilla’s appeal followed.
Oy -- now that is stone-cold.

Good thing Judge Rothenberg set him straight, basically concluding he did the wrong thing and maybe should try again.

Darn you all to hail, Put Something Back -- now this foreclosure is back on the docket!

BDO Seidman v. Banco Espirito:

Anyone remember that little half-billion-dollar judgment?

Steve Thomas sure does.

That's why he moved for post-judgment discovery under section 45.045(3) even though BDO already posted a $50 million bond pursuant to section 45.045.

Judge Schlesinger denied the discovery request, reasoning that post-judgment discovery in aid of execution was barred by the statute and the 3d's prior opinion in this case.

Wrong, says the 3d -- you can still conduct discovery to see whether assets are being diverted or dissipated, though you shouldn't confuse that in any way with discovery in aid of execution, which is still stayed by virtue of the bond.

Make sense?

BTW, footnote 3 indicates that the requested discovery may well have been an "unfettered fishing expedition through an appellant's records."

This makes me think that the trial court probably would have considered the request as proper under 45.045(3) if it had been more narrow and properly-tailored to the diversion and dissipation issue.

Oh well, what do I know?

Is Roberto our next U.S. Senator?

I've not gotten into the local online frenzy over who will be our next caretaker Senator before the election, mostly because I was unaware that Mel Martinez was in fact still a sitting Senator.

Didn't he already retire?

Was he ever actually our Senator?

He is a nice guy with a compelling life story but was kind of a ghost Senator, much as he was a ghost litigator back when he practiced at Akerman.

The only notable thing he accomplished that I can recall was when he leaked that internal memo about how good it was to pump the Schiavo case to death.

Did he do anything else?

Anyway, swlip's friend Beth Reinhard thinks the next caretaker may be none other than Marlin Stadium fighter Roberto Martinez (via Riptide):

Martinez is a Republican but gets good reviews from Democrats like state Sen. Dan Gelber, who worked for Martinez in the early 1990s.

"Bob has got extraordinary character and intelligence and is as current on the issues as anyone I know,'' Gelber said. "He's a good Republican, but more importantly, he's a good American."

Longtime readers know Roberto is a favorite of this blog, so we're happy to possibly see him up there in DC, keeping the seat warm for his friend Charlie.

But Dan, you don't say Roberto is "a good American"; you say he's a "good 'merican"

Gotta get the pronunciation right, buddy.

Tuesday, August 11, 2009

The Eleventh Circuit Goes Iqbal-Crazy!

Iqbal Iqbal Iqbal.

I'm already sick to death of this opinion, and the mania over it has not yet even started.

As I have written before, Iqbal is the standard of review legal equivalent of flatbread -- inert, tasteless, yet somehow incredibly trendy and inexplicably popular.

Today the Eleventh released its opinion in the closely-followed case of the union organizers who were tortured and killed at a Columbian bottling plant, Sinaltrainal, where claims were being asserted against Coca-Cola under the Alien Tort Statute and the Torture Victims Protection Act.

In an opinion by Judge Black, the Eleventh affirmed the Southern District, and held that the complaints did not state a claim -- probably the right result.

In doing so, however, Judge Black adopted Iqbal (as it must) and attempted to lay out for us the brave new post-Iqbal world:
Although it must accept well-pled facts as true, the court is not required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. ---,129 S. Ct. 1937, 1949 (2009) (noting “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable inferences in Plaintiff’s favor, “but we are not required to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted deductions of fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating conclusory allegations are “not entitled to be assumed true”).

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 129 S. Ct. at 1950 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-62, 570, 127 S. Ct. 1955, 1968-69, 1974 (2007) (retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts” standard). In Twombly, the Supreme Court emphasized a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S. Ct. at 1964-65 (internal citations and emphasis omitted).

More recently, in Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949. A complaint must state a plausible claim for relief, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974.
Again, what the difference is between conceivable and plausible is a mystery and this "test" seems to me completely unhelpful to litigants in the real world.

Indeed, does anyone know what any of that means?

By that I mean, is there any complaint that you would not throw an Iqbal challenge against, given the vagaries of the current formulation?

The new test seems to me to vest a huge amount of discretion in the district court at the initial stages to make a good old-fashioned 3d DCA-styled "gut check" and determine -- without discovery or a sustained effort by counsel to flesh out the allegations -- that the case should be gone forever.

Question -- if Rule 8 did not change, then how come the pleading standard did?

That's why I'm intrigued by Senator Spector -- currently being assailed by misinformed angry white folks who want God to rain justice on his cancer-ridden corpus -- and his efforts in Congress to return Rule 8 to its 1957 Conley-era roots.

You know, the good old days....when people just ate bread.